FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23274/04 
by Kevin O’LOUGHLIN and Others 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 25 August 2005 as a Chamber composed of:

Mr J. Casadevall, President
 Sir Nicolas Bratza
 Mr G. Bonello
 Mr M. Pellonpää
 Mr R. Maruste
 Mr K. Traja, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 10 August 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants are, save for certain relatives of Antonio Magliocco who are Italian citizens, Irish nationals and represented by Mr G. O’Neill, a solicitor practising in Dublin. They are relatives of persons who were killed, or victims themselves of injuries caused, by bomb explosions in Dublin and Monaghan. The names and details of the applicants are contained in the case-file.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 17 May 1974, four car bombs exploded without warning in the Republic of Ireland, killing thirty four people and injuring over two hundred. At about 5.30 p.m., three car bombs exploded within minutes of each other at three locations in Dublin, namely Parnell Street, Talbot Street and South Leinster Street. The fourth car bomb exploded 90 minutes later in Monaghan.

The Irish authorities conducted extensive investigations. It was discovered that the cars used for the bombing were stolen in Belfast the same day. The Royal Ulster Constabulary (RUC) conducted an investigation into the theft of the cars and related offences which did not produce any result. No murder inquiry was begun in Northern Ireland. Authorities on both sides of the border held suspicions that the events were carried out by loyalist paramilitaries.

In July 1993, Yorkshire Television broadcast a documentary “Hidden Hand – the Forgotten Masssacre" which raised concerns as to whether elements of the United Kingdom security forces were involved in the bombings. It alleged that the bombers included not only eight suspects (members of the UVF including David Mulholland and Samuel Whitten) but named in addition four planners, Billy Hanna, Robert Mc Donnell Harris Boyle and a loyalist killer known as the Jackal, not named for legal reasons, all of whom were former or serving members of the UDR.1 It was suggested that despite much early information in the investigation, the trail ran cold at RUC headquarters in Belfast. Enquiries into suspects had to be made through the RUC who did not report back. There was no evidence that the RUC had ever bothered to question or arrest the suspects. The programme included interviews inter alia with Fred Holroyd, an army officer who had in 1974 been working undercover for Army Intelligence and MI6, Colin Wallace, a senior army information officer in 1973-1975 and various explosives experts and suggested that the organising of the Dublin bombings had been beyond the limited loyalist expertise at the time and that they must have had assistance. It was further suggested that military intelligence had infiltrated the loyalist structures, that certain loyalists were working closely with intelligence in operations including acts of cross-border terrorism and that some of the explosive used in the Dublin bombings had been provided from security force sources

Following the programme, relatives of the victims obtained from the Irish Minister of Justice a commitment that the Garda investigation into the bombings would be reviewed and any new evidence referred to in the documentary would be examined. In the Garda investigation which followed, police obtained the co-operation of the RUC and attended interviews of suspects in Northern Ireland, including Robin Jackson, Mulholland and Whitten. Interviews were also conducted with Fred Holroyd and Colin Wallace but they declined to make a statement and did not offer any evidence to support the allegations made during the programme.

On 17 May 1995, the Irish Department of Justice issued a press release setting out conclusions reached in the review. It cast doubt on the credibility of the documentary.

In January 1996, the relatives obtained the services of a solicitor and counsel, who reviewed the material and advised that there was insufficient evidence of any allegation of State wrongdoing to be advanced in respect of the bombings themselves. They advised that further evidence would have to be obtained and that such evidence could only be obtained by some form of public inquiry. They also advised that there was sufficient basis to lodge a complaint with the European Commission of Human Rights that the RUC had failed to conduct a murder inquiry into matters connected with the bombings in Dublin and Monaghan. An application, no. 36157/97, Patrick Doyle v. the United Kingdom brought by one of the relatives of the victims was rejected by the Court on 6 July 1999 for failure to comply with the six months time-limit (that is, the complaint had not been introduced within six months of the programme which had made the applicant aware of the alleged failure of the United Kingdom authorities to co-operate with the Irish authorities’ inquiry).

On 16 June 1998, the Irish Government appointed a Victims’ Commission whose terms of reference included considerations of the needs and concerns of victims of major outrages including those of the Dublin and Monaghan bombings. In August 1999, the Victim Commissioner’s Report recommended a private judicial inquiry.

In early 1999, allegations by John Weir, a former RUC Sergeant who had served twelve years in prison for the murder of William Strathearn, were made public. He named persons allegedly involved in bombings and shootings, including the Dublin and Monaghan bombings and suggested that collusion between loyalist paramilitaries and certain elements in the security forces was taking place in the mid-1970s. Irish police officers interviewed him in April 1999 and he made a statement.

In December 1999, the Irish Government agreed to establish a non-statutory Commission of Inquiry. Mr Justice Henry Barron was eventually appointed to head the inquiry and issue a report to the Government, after which a committee of the Irish Parliament would decide whether any further steps should be taken. The inquiry was informal, did not sit in public and had no legal powers.

In December 2003, the inquiry report ("the Barron Report") was made public. The inquiry had heard evidence, inter alia, from John Weir, Fred Holroyd, Colin Wallace and Irish police officers involved in the investigations. Weir named Hanna as the main organiser of the bombings and had claimed that explosives for all four bombs had been supplied by a named UDR officer. Weir had also named Laurence McClure, a RUC officer, as assembling the Dublin bombs. He did not claim that Army or intelligence contacts assisted Hanna and Jackson in planning the bombings.2 Written evidence before the inquiry included materials from the RUC who had carried out a number of interviews at the request of the Irish police, including James Mitchell, a constable in the RUC Reserve who owned the farm allegedly central to the activities of the group named by Weir, McClure and the UDR officer named by Weir as supplying explosives. They had all rejected the allegations.

In his statement to the Joint Committee of the Irish Parliament, Mr Justice Barron stated that the inquiry was satisfied that it had received all relevant documentation from sources within the State. As regarded elsewhere, he noted that from the early stages the inquiry had received assurances of co-operation from the British Government and the Police Service of Northern Ireland (PSNI). From its dealings with the RUC/PSNI, the Inquiry had received a considerable amount of information, including records of the questioning in December 1978 of RUC officers suspected of participating in attacks on Catholic civilians as well as ballistics evidence. There had been considerable delay in obtaining information from the Secretary of State for Northern Ireland. The inquiry was told that this was because there were some 68,000 files of possible relevance in the Northern Ireland Office alone, while files in the Ministry of Defence could be counted in the millions. The teams examining these files were stated to have finished at the end of 2001. On 26 February 2002, a ten page letter was sent by the Secretary of State containing the promised information. An appendix of six pages gave details of the structure and control of intelligence gathering at the relevant time. No copies of original documents had been provided. Further requests for specific information did produce some additional information in a similar form.

"Correspondence with the Northern Ireland Office undoubtedly produced some useful information; but its value was reduced by reluctance to make original documents available and the refusal to make other information available on security grounds. While the Inquiry fully understands the position taken by the British Government on these matters, it must be said that the scope of this report is limited as a result."

The inquiry summarised its conclusions as follows:

"The facts, circumstances, causes and perpetrators of the bombs:

The Dublin and Monaghan bombings were carried out by two groups of loyalist paramilitaries, one based in Belfast and the other in the area around Portadown/Lurgan. Most, though not all of those involved were members of the UVF (Ulster Volunteer Force). It is likely that the bombings were conceived and planned in Belfast, with the mid-Ulster element providing operational assistance.

The bombings were primarily a reaction to the Sunningdale Agreement – in particular to the prospect of a greater role for the Irish Government in the administration of Northern Ireland – though there were other specific events in April and May 1974 which might have influenced the attacks.

The loyalist groups who carried out the bombings in Dublin were capable of doing so without help from any section of the security forces in Northern Ireland, though this does not rule out the involvement of individual RUC, UDR or British army members. The Monaghan bombing in particular bears all the hallmarks of a standard loyalist operation and required no assistance.

It is likely that James Mitchell at Glenanne played a significant part in the preparation for the attacks. It is also likely that members of the UDR and RUC either participated in, or were aware of those preparations.

The nature, extent and adequacy of the Garda investigation, including the co-operation with and from the relevant authorities in Northern Ireland and the handling of evidence, including the scientific analyses of forensic evidence:

The Garda investigation failed to make full use of the information which it obtained. Certain lines of inquiry that could have been pursued in this jurisdiction were not pursued. There were other matters, including the questioning of suspects, in which the assistance of the RUC should have been requested, but was not.

The State was not equipped to conduct an adequate forensic analysis of the explosions. This was because the importance of the preservation, prompt collection and analysis was not appreciated. The effect of this was that potentially vital clues were lost.

Although the investigation teams had in their opinion no evidence upon which to found a prosecution, there is no evidence that they sought the advice of the Attorney General, in whose name criminal prosecutions were at that time still being brought. Had the Attorney General reviewed the file, it is likely that advice would have been given as to what further direction the investigation might take.

The reasons why no prosecution took place, including whether and if so, by whom and to what extent the investigations were impeded:

A number of those suspected for the bombings were reliably said to have had relationships with British Intelligence and/or RUC Special Branch officers. It is reasonable to assume that exchanges of information took place. It is therefore possible that the assistance provided to the Garda investigation team by the security forces in Northern Ireland was affected by a reluctance to compromise those relationships, in the interests of securing further information in the future. But any such conclusion would require very cogent evidence. No such evidence is in the possession of the Inquiry. There remains a deep suspicion that the investigation into the bombings was hampered by such factors, but it cannot be put further than that.

There is evidence which shows that the informal exchange of information between the Garda on the border and their RUC counterparts was extensive. There is some evidence to suggest that some Garda officers, unwittingly or otherwise, may have been giving information to the members of the British Army or Intelligence Services. The Inquiry has found no evidence to support the proposition that such exchanges in some way facilitated the passage of the Dublin and Monaghan bombers across the border. Similarly, no basis has been found for concluding that the Garda investigation was in any way inhibited because of a fear of exposing such links.

The Inquiry has examined allegations that the Garda investigation was wound down as a result of political interference. No evidence was found to support that proposition. However, it can be said that the Government of the day showed little interest in the bombings. When information was given to them suggesting that the British authorities had intelligence naming the bombers, this was not followed up. Any follow-up was limited to complaints by the Minister for Foreign Affairs that those involved had been released from internment.

The issues raised by the ‘Hidden Hand’ TV. documentary broadcast in 1993:

There is no evidence that any branch of the security forces knew in advance that the bombings were about to take place. This has been reiterated by the current Secretary of State for Northern Ireland and is accepted by the Inquiry. If they did know, it is unlikely that there would be any official records. Such knowledge would not have been written down; or if it was, would not have been in any files made available to the Secretary of State. There is evidence that the Secretary of State of the day was not fully informed on matters of which he should have been made aware. On that basis, it is equally probable that similarly sensitive information might be withheld from the present holder of that office.

The Inquiry believes that within a short time of the bombings taking place, the security forces in Northern Ireland had good intelligence to suggest who was responsible. An example of this could be the unknown intelligence that led British Intelligence sources to tell their Irish Army counterparts that at least two of the bombers had been arrested on 26 May and detained. Unfortunately, the Inquiry has been unable to discover the nature of this and other intelligence available to the security forces in Northern Ireland at that time.

As is made clear in the Report, there are grounds for suspecting that the bombers may have had assistance from members of the security forces. The involvement of individual members in such an activity does not of itself mean the bombings were either officially or unofficially state-sanctioned. If one accepts that some people were involved, they may well have been acting on their own initiative. Ultimately, a finding that there was collusion between the perpetrators and the authorities in Northern Ireland is a matter of inference. On some occasions an inference is irresistible or can be drawn as a matter of probability. Here, it is the view of the Inquiry that this inference is not sufficiently strong. It does not follow even as a matter of probability. Unless further information comes to hand, such involvement must remain a suspicion. It is not proven."

In January-March 2004, hearings on the report took place before the Sub-Committee of the Joint Committee on Justice, Equality, Defence and Women’s Rights. The Joint Committee issued its final report on 31 March 2004, making a number of recommendations, inter alia, that a Commission of Investigation be set up in respect of identified concerns about the Garda investigation (the reason it was wound down in 1974 and did not pursue certain leads) and missing documentation from police, intelligence and Department of Justice files. As regarded external issues of collusion, the Committee noted that Mr Justice Barron had requested assistance from the Great Britain and Northern Ireland authorities and that he was furnished with a sixteen page summary of any relevant information on the Dublin and Monaghan bombings which had resulted from a trawl of their files. The Committee had invited former and current ministers and officers from Great Britain and Northern Ireland to make oral or written submissions to elaborate on this document and any other relevant matters but these invitations were declined. It stated:

"The Sub-Committee wishes to express its grave disappointment at the response received to these invitations. An examination of the Northern Ireland and Great Britain records from the time in question would be necessary for any examination of this area. However, neither the Sub-Committee nor Mr Justice Barron were afforded the co-operation which the gravity of the atrocity required.”

It took the view that the information received by it had reinforced suspicion of collusion between security forces and loyalist groups in Northern Ireland and that further extensive investigation was required. It noted the self-evident problems that arose since potentially relevant information and witnesses were outside the jurisdiction and access to these sources in United Kingdom and Northern Ireland were vital. It concluded that a Public Tribunal of Inquiry in Northern Ireland or Great Britain was required, presided over by a judge of international standing and with powers to summon witnesses and compel disclosure of documents, and that in the event of a lack of co-operation from the United Kingdom in that respect the Irish Government should consider instituting proceedings before the Court in Strasbourg.

Meanwhile, the lawyers acting for the relatives in "Justice for the Forgotten" discovered that the inquests into the death of those who had died in the bombings in 1974 had been adjourned. In 1999 the Dublin City Coroner agreed that the inquests should proceed once the inquiry report had issued. The inquests took place in April and May 2004 and issued findings of unlawful killing.

COMPLAINTS

The applicants complained under Article 2 that the bombings were carried out by a terrorist gang, which included serving members of the security forces in Northern Ireland, agents of the said security forces and of their intelligence agencies. The gang received technical and material assistance from members of the security forces and also operated with the knowledge and tolerance of the security forces and intelligence agencies. This included the British Army, the RUC, the RUC Special Branch, the RUC Reserve, the UDR, MI5 and MI6. They asserted that the United Kingdom Government was accountable for the wrongful killings involved.

The applicants further complained under Article 2 that the United Kingdom had failed to comply with the procedural obligation to co-operate with the inquiries and requests in the Irish State into the circumstances surrounding the bombings, in particular as the bomb vehicles had been stolen in Northern Ireland on the morning of the bombings, the bombers came from and returned to Northern Ireland and any effective inquiry into the events, in particular the inquests, required the assistance, co-operation and participation of the United Kingdom.

THE LAW

1.  The applicants complain that the bombings in Dublin and Monaghan in 1974 were carried out with the participation and assistance of members of the security forces in Northern Ireland and with the knowledge and tolerance of the authorities, invoking Article 2 of the Convention which provides as relevant:

“1.  Everyone’s right to life shall be protected by law. ...”

Article 35 § 1 of the Convention requires however that the Court may only deal with a matter where it has been introduced within six months from the date of the final decision. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on, or prejudice to, the applicant (see 76573/01, Dennis and Others v. the United Kingdom, decision of 2 July 2002). The Court recalls that the object of the six month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, judgment of 29 August 1997, Reports 1997–V, at p. 1547, §§ 32-33).

In the present case the bombings occurred in 1974. It is apparent that even at the time there were strong suspicions that the suspects came from Northern Ireland. The Court notes that allegations that members of the security forces were involved or colluded with the loyalist suspects were made public in July 1993 in the television documentary, "The Hidden Hand".

The applicants were therefore aware at this date at the latest that there had been collusion between the security forces and loyalist paramilitaries in Northern Ireland which may have included the Dublin and Monaghan bombings.

It is not apparent that the applicants have sought to take any proceedings within the United Kingdom. While there have been various proceedings and inquiries within the Republic of Ireland these cannot be regarded as effective remedies as regards the United Kingdom Government which is not subject to the Irish jurisdiction. Notwithstanding the fact that the Barron Report and the Joint Committee Report made findings in respect of the bombings and made public additional information concerning events, these cannot be regarded as relevant to a process of exhaustion of remedies vis-à-vis the British authorities for any complicity or collusion in the bombings. This position is not affected by the United Kingdom Government’s assurance to the Irish authorities that it would give voluntary assistance to the inquiry or by the fact that the inquests in Ireland gave their final verdicts of unlawful killing in April 2004.

Assuming therefore that there were no remedies that could have been exhausted within the jurisdiction of the United Kingdom, the six month time-limit must be regarded in the circumstances of this case as running from, at the latest, July 1993, whereas the application was introduced on 10 August 2004.

It follows that this complaint has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  The applicants further complained under Article 2 of the Convention that the United Kingdom authorities had failed to assist in the investigations and the inquests carried out into the deaths.

The Court observes that both the Barron Report (published in December 2003) and the Joint Committee Report (dated 31 March 2004) made negative comments about the co-operation of the United Kingdom authorities with their respective investigations, in particular as regarded lack of access to original documents from the relevant period. It is not apparent whether the inquests made similar requests for information which was not forthcoming.

For the purposes of the present case, the Court does not need to decide whether, or to what extent, Article 2 could impose an obligation on one Contracting State to co-operate with inquiries or hearings conducted within the jurisdiction of another Contracting State concerning the use of unlawful force resulting in death.

The essential purpose of the procedural obligation under Article 2 is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Accordingly, where suspected perpetrators of a bombing attack carried out elsewhere are known to be present within the jurisdiction of a Contracting State, and evidence of a criminal offence may be secured, the fundamental importance of Article 2 requires that the authorities of that State of their own motion take effective measures in that regard. Otherwise, those indulging in cross-border attacks will be able to operate with impunity and the authorities of Contracting State where the unlawful attacks have taken place will be foiled in their own efforts to protect the fundamental rights of their citizens. The nature and scope of those measures will, inevitably, depend on the circumstances of the particular case and it is not appropriate for the Court to attempt to be more specific in this decision.

Turning to the present case, the Court observes that notwithstanding the presence in Northern Ireland of known suspects and strong evidence that crimes linked to the bombings took place on Northern Ireland soil (whether car theft, aiding and betting or conspiracy) the RUC did not open its own murder investigation. It is also not apparent what steps if any they took as regards questioning the suspects or seeking evidence of the offences that may have been committed with their own jurisdiction or outside it. That the Northern Irish authorities’ response to the bombings may have been seriously defective was however amongst the allegations made in the television documentary already referred to. By that time, July 1993, almost twenty years after the tragic events, it may be noted three of the suspected planners of the attacks had already died.

The lapse of time in this case is striking. As stated above, the six month rule enshrines the basic principle that complaints of breaches of Convention rights be brought with the expedition necessary to ensure effective and fair examination of the case. There are no exceptions and no possibility of waiver. The Court observes that the applicants were already advised in the wake of the television documentary that they had grounds to bring an application to Strasbourg. They did not do so until October 2004. It is accordingly driven to the conclusion that the present application has been introduced many years out of time. The intervening events, in particular the Barron Inquiry, the Joint Committee hearings and the final disposal of the inquests in Ireland cannot be relied on in the circumstances of this case as starting a fresh time-limit for complaints against the United Kingdom, the essence of which was already known to the applicants from July 1993 at the latest.

It follows that this part of the application must also be rejected for non-compliance with the six month time-limit and rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’ Boyle Josep casadevall 
  Registrar President

1 Hanna was shot dead by other loyalists in 1975, Boyle was blown up a year later by his own bomb, McConnell was shot dead by the IRA in 1976 while serving as a corporal in the UDR; and the Jackal, it was alleged, was still alive at the time and one of the UVF's most active gunmen, still acting under the protection of the security forces. Identified by name in the later Barron Report as Robin Jackson, he had died of natural causes in 1998.


2 The report noted that on his own evidence Weir's involvement with Mitchell's farm did not commence until 1976 and that he could not have known Hanna in person. He claimed his information about Dublin and Monaghan came from Mitchell and McClure.


O’LOUGHLIN and Others v. THE UNITED KINGDOM DECISION


O’ LOUGHLIN and Others  v. THE UNITED KINGDOM DECISION